Nares v. Bell

• Decision Date: 03 December 1902
• Citation: 66 Neb. 606,92 N.W. 571
• Parties: NARES ET AL. v. BELL ET AL.
• Court: Nebraska Supreme Court

66 Neb. 606

92 N.W. 571

NARES ET AL.

v.BELL ET AL.^a1

Supreme Court of Nebraska.

Dec. 3, 1902.

Syllabus by the Court.

1. A mortgage on real estate continues as a lien thereon for 10 years only from the maturity of the debt secured. If the debt secured is payable in installments, the mortgage cannot be enforced as a security for any installment due and payable 10 years or more prior to the commencement of the action to foreclose.

Commissioners' opinion. Department No. 3. Error to district court, Boone county; Munn, Judge.

Action by L. A. Nares and others against George M. Bell and others. Judgment for defendants, and plaintiffs bring error. Reversed.C. E. Spear, for plaintiffs in error.

H. C. Vail, R. W. Hobart, and J. G. Reeder, for defendants in error.

DUFFIE, C.

Nares brought an action in the district court of Boone county to foreclose a mortgage executed by George M. and Louisa A. Bell. Patrick H. Smith was the owner of a prior mortgage, made to him March 8, 1888. The mortgage secured two notes,--one for $150, due in 1 year, and the other for $50, due in 18 months. On the 31st day of August, 1900, he intervened in the action brought by Nares, claiming a foreclosure of his mortgage for the full amount secured thereby, and asking that it be declared a first lien upon the mortgaged premises. As will be noticed from the above statement, the note for $150 had matured more than 10 years prior to the filing of his petition of intervention, and the statute of limitations was interposed against his recovery, so far as this note is concerned. The district court entered a decree foreclosing the mortgage for the full amount secured thereby, and the case is brought here upon error.

Should the district court have entered a decree foreclosing the mortgage for the full amount secured thereby, or had the intervener, by his neglect to commence foreclosure proceedings within 10 years from the maturity of the note, lost his right to foreclose for the amount represented by that note? It is insisted by the defendants in error that, where a mortgage secures a debt payable by installments, the statute does not commence to run against a foreclosure of the mortgage until the last installment has matured; and we are cited to several cases where the debt or the interest reserved upon the debt was payable in installments, and the mortgage contained a clause maturing the whole debt on default in the payment of any installment when due. In the cases cited it was held that this condition in the mortgage conferred upon the mortgagee a mere option, which he might exercise, or not, at his pleasure; but if he failed to exercise it, and to declare the debt due before its maturity, as shown by the face of the contract, that the statute did not commence to run until the debt had fully matured according to the terms of the notes secured by the mortgage. Watts v. Creighton, 85 Iowa, 154, 52 N. W. 12;Richards v. Daley (Cal.) 48 Pac. 220;Mason v. Luce (Cal.) 48 Pac. 72;Lowenstein v. Phelan, 17 Neb. 428, 22 N. W. 561. In Wood, Lim. Act. § 224, it is said: “When a mortgage is payable by installments, the statute attaches to each installment as it becomes due, but the mortgagor's possession does not become adverse until the last installment has matured.” This, we think, announces the true rule. At common law, the mortgagor having by his mortgage conveyed to the mortgagee the legal title to the premises, his possession, if he remain in possession of the estate, is as tenant of the mortgagee; and such possession...